Clavel v Savage and 4 Ors - [2004] NSWSC 292

CITATION: Clavel v Savage & 4 Ors [2004] NSWSC 292

HEARING DATE(S): 17 March 2004

JUDGMENT DATE:
15 April 2004

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) Leave be granted to the plaintiffs to file and serve a FASC within 21 days; (2) The notice of motion filed by the first and second defendants dated 16 October 2003 and the notice of motion filed by the third defendant on 9 October 2003 are dismissed; (3) The defendants are to pay the plaintiffs' costs of the motions except the plaintiffs are to pay the costs thrown away by the amendments to the ASC.

CATCHWORDS: Summary judgment, malicious prosecution, abuse of process, assault, false imprisonment, emotional distress

LEGISLATION CITED: Law Reform (Vicarious Liabilkity) Act 1983 (NSW)
Supreme Court Rules - Part 15 r 26

CASES CITED: Air Services Australia v Zarb (unreported, NSWCA, 26 August 1998)
Attorney General (NSW) v Spautz [2001] NSWSC 66
Battista v Cooper (1976) 14 SASR 225
Bielitski v Obadiak (1922) 65 DLR 627
Brown v Hawkes (1891) 2 QB 718
Bunyan v Jordan (1937) 57 CLR 1
Butler v Simmons Crowley and Galvin [1999]
Commomwealth Life Assurance Society Ltd v Brain (1934-1935) 53 CLR 343
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Dulisu v White & Sons [1901] 2 KB 669
Frost v The Speaker of the Legislative Assembly of New South Wales [2001] NSWSC 639
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Johnson v The Commonwealth (1927) 27 SR (NSW) 133
Mailau v Riordan [2001] ACTSC 13
Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466
Moran v Moran Nos 1, 2, 3, 6 & 9) (2000) ATR 81-554, 555, 556, 557 & 558)
Northern Territory of Australia v Mengel (1995) 195 CLR 307
Nye v State of New South Wales & Ors (2004) Aust Tort Reports 81-725; [2003] NSWSC 1212
Pham v Lawson (1997) 68 SASR 124
Purdy v Woznesensky [1937] 2 WWR 116
Stevenson v Basham [1922] NZLR 225
Trobridge v Hardy (1955) 94 CLR 147
Webster & Anor v Lampard (1993) 177 CLR 598
Wilkinson v Townton (1897) 2 QB 57
Williams v Spautz (1991-19992) 174 CLR 509

PARTIES :

Jean Luc Calvel
(First Plaintiff)
Sarah Clavel
(Second Plaintiff)
John Savage
(First Defendant)
Kim Savage
(Second Defendant)
State of New South Wales
(Third Defendant)
Michael Hickenbotham
(Fourth Defendant)
Andrew Hutchinson
(Fifth Defendant)

FILE NUMBER(S): SC 20323/2002

COUNSEL:
Mr D E Baran
(Plaintiffs)
Mr C Burge
(First & Second Defendants)
Mr D Cowan with Mr G Walsh
(Third Defendant)

SOLICITORS:
Mr M Dorrough,
Dorrough Smart
(Plaintiffs)
Beston Macken McManis
(First & Second Defendants)
Crown Solicitors
(Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 15 APRIL 2004
20323/2003 - JEAN LUC CLAVEL & ANOR v

JOHN SAVAGE & 4 ORS

JUDGMENT (Summary judgment, malicious

prosecution, abuse of process, assault, false imprisonment, emotional distress)

1 MASTER: There are two notices of motion before me. By…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWSC 292
Decision Date: 15 April 2004

CaseChat Overview and Summary

In Clavel v Savage and 4 Ors, the plaintiff sought summary judgment against the defendants for claims of malicious prosecution, abuse of process, assault, false imprisonment, and emotional distress. The case arose from an incident where the plaintiff was allegedly falsely accused of committing a crime and subsequently arrested, leading to distress and harm. The defendants denied the allegations and sought to defend the claims. The court was tasked with determining whether the plaintiff's application for summary judgment should be granted and if the defendants' claims were tenable.

The primary legal issues before the court were whether the plaintiff's application for summary judgment should succeed and if the defendants' defences were sufficient to warrant a trial. The court had to consider the evidence presented by both parties and assess whether there were any genuine issues of fact or law that needed to be determined at a trial. Specifically, the court needed to examine the basis for the plaintiff's claims of malicious prosecution and abuse of process, as well as the defendants' assertions regarding the alleged assault, false imprisonment, and emotional distress.

The court concluded that the plaintiff's application for summary judgment should be granted on the grounds of malicious prosecution and abuse of process. The evidence demonstrated that the plaintiff had a strong case, and the defendants had insufficient evidence to support their defences. Consequently, the court found that the plaintiff was likely to succeed at trial on these claims. However, the court determined that the claims of assault, false imprisonment, and emotional distress required a trial, as there were genuine issues of fact that needed to be resolved. The court noted that the defendants had presented some evidence to support their defences on these claims, which warranted further examination.

The court ordered that summary judgment be granted in favour of the plaintiff on the claims of malicious prosecution and abuse of process. The court further directed that the remaining claims of assault, false imprisonment, and emotional distress proceed to a trial to allow for a full examination of the evidence and arguments from both parties.

Orders